The photograph is a study in contrasts. On the left, standing stiffly and staring glumly, is Mitch McConnell, 80, the Republican minority leader in the Senate accused of committing professional fouls when confronting judicial confirmations.
On the right, at a slightly awkward distance from McConnell, is Judge Ketanji Brown Jackson, 51, chosen by a Democratic president to be the first Black woman on the US supreme court, smiling warmly at the camera, her posture more relaxed than the senator’s.
This was one stop for Jackson this week when she began courting senators from both sides of the aisle ahead of nomination hearings that start on 21 March before a vote in the full chamber.
For McConnell, who blocked President Barack Obama’s 2016 nominee Merrick Garland then oversaw the confirmation of three conservative justices under President Donald Trump, there are few options this time. Democrats can confirm Jackson without Republicans in a Senate that is divided 50-50 and where Vice-President Kamala Harris wields the tiebreaker vote.
Experts predict that Republicans will use the process to score some political points – just as Democrats did in 2020 when they were powerless to block Amy Coney Barrett’s ascent to the court – but ultimately they will not resort entirely to scorched earth tactics.
McConnell and colleagues know that Jackson is replacing a fellow liberal, the retiring Stephen Breyer, and so will not change the 6-3 conservative majority on the court. They are also aware that opinion polls suggest a thumping Republican victory in November’s midterm elections and do not want to risk an overreach that might change that trajectory.
“It would be difficult for the Republicans to stop it and a very strong, aggressive effort to block her confirmation could be perceived as being racially motivated,” said Edward Fallone, an associate professor at Marquette University Law School. “They’re already in a favorable position for the midterm elections and the last thing they want to do is erode that by getting accused of being racist at this time. So they should just stay out of the way.”
But that will not necessarily prevent some Republicans using racist dog whistles to rile up the Trump base, as they have before.
At a confirmation hearing last November, for example, the Republican senator John Kennedy told Kazakh-born Saule Omarova, nominee for comptroller of the currency: “I don’t mean any disrespect: I don’t know whether to call you professor or comrade.” She replied: “Senator, I’m not a communist.”
Fallone commented: “There are certainly going to be the Republican loose cannons but the question would be whether one of the more mainstream Republicans slips up and makes a comment that’s perceived as racist.”
There was an early preview of the potential for bigotry this week when, after Biden championed Jackson in his State of the Union address as “one of our nation’s top legal minds”, Tucker Carlson, an influential host on the conservative Fox News network, remarked: “It might be time for Joe Biden to let us know what Ketanji Brown Jackson’s LSAT score was.”
LSAT is the Law School Admission Test. Critics noted that Carlson never made a similar demand for the LSAT scores of white justices appointed by Trump.
Jackson has served since last year on the US court of appeals for the District of Columbia circuit after eight years as a federal district judge in Washington and worked earlier as a supreme court clerk for Breyer. She is related by marriage to the former House speaker Paul Ryan, now a board member at the parent company of Fox News.
Democrats hope to confirm her before the Easter recess starts on 11 April. She was accompanied this week by Doug Jones, a civil rights lawyer and former senator from Alabama. After a 40-minute meeting, the Democratic majority leader, Chuck Schumer, told reporters: “She deserves support from the other side of the aisle, and I am hopeful that a good number of Republicans will vote for her, given who she is.”
But McConnell has raised questions about Jackson’s short record as an appellate judge, which includes only two opinions so far. “I am troubled by the combination of this slim appellate record and the intensity of Judge Jackson’s far-left, dark-money fan club,” the senator from Kentucky said.
It was a clue that the days when supreme court justices were confirmed with more than 90 bipartisan votes are long gone and that most Republicans are likely to oppose Jackson, despite her receiving support from the Fraternal Order of Police and former judges appointed by Democrats and Republicans.
Even so, few predict a bareknuckle fight that will dominate national headlines like the confirmation hearing for Brett Kavanaugh, who faced allegations of sexual misconduct from his teenage years.
Christopher Kang, co-founder and chief counsel of the progressive pressure group Demand Justice, said: “They have nothing to turn it into a battle over. At the end of the day, Republicans still control a supermajority of the supreme court so the substantive stakes are not there for them.
“There’s nothing in Judge Jackson’s record that they could turn into a rallying cry on their side either so I do think that it will be a somewhat muted battle. Or perhaps, as too often seen with women of color who are judicial nominees, unfortunately it may end up devolving into some racist and misogynist attacks. But it won’t be based on her record at all.”
Susan Collins of Maine, Lisa Murkowski of Alaska and Lindsey Graham of South Carolina were the only Republicans to vote to confirm Jackson to the appeals court last year. While Collins appears open to voting for Jackson again, Murkowski has said her previous vote did not mean she would be supportive this time. Graham had advocated for a different candidate from his home state, federal judge Michelle Childs, and expressed disappointment that she was not Biden’s pick.
But, along with rightwing media, some outside advocacy conservative organisations are attacking Jackson’s nomination.
The Judicial Crisis Network (JCN) has launched a $2.5m campaign trying to make the case that a “liberal dark money network” helped get Biden elected, pressured Breyer to retire and is now seeking to replace him with “a rubber stamp for their unpopular and far-left political agenda”.
Curt Levey, president of the conservative Committee for Justice, said: “The strategy on our side is not to really try to stop her but to try to make some larger points. I think JCN is making a point about dark money groups pressuring Biden to choose the most progressive of the three choices [the other frontrunners were Childs and California supreme court justice Leondra Kruger].”
Levey’s own group does not see it as worthwhile to spend money on TV adverts, however. “We can be effective on those larger points but I don’t think there’s any amount of commercials you could run that would stop her from being confirmed.”
It is a pragmatic view shared by John Cornyn, a Republican member of the Senate judiciary committee, who is due to meet Jackson on 10 March and does not expect surprises. He told reporters: “She’s not new to us. Given the fact that she’s not going to change the ideological balance on the court … we all have a pretty good idea what the outcome is likely to be.”
